What happens if Roe v. Wade is overturned?

WASHINGTON AFFAIRS: Thirteen states, including Texas, Utah, Arkansas, and Oklahoma, have a so-called “trigger ban” in place, which could go into effect if it is overturned.

 MEMBERS OF JEWS For Racial and Economic Justice and IfNotNow hold signs that say ‘Baruch Hashem For Abortion’ at a New York rally on Tuesday. (photo credit: Jacob Henry/JTA)
MEMBERS OF JEWS For Racial and Economic Justice and IfNotNow hold signs that say ‘Baruch Hashem For Abortion’ at a New York rally on Tuesday.
(photo credit: Jacob Henry/JTA)

WASHINGTON – Over the years, the public debate over reproductive rights has become one of the most heated topics, as it amplifies the cultural, political and religious divisions in America. The Supreme Court was always the focal point of this debate, as past presidents vowed to appoint justices that would align with their respective agendas. Thus, Supreme Court nominations are an integral part of any presidential debate.

And while Democrat-controlled states sought to codify and protect the right for abortion, Republican-controlled states have been passing laws limiting abortion rights for years, hoping that one of these laws will be challenged and brought before the Supreme Court, where the growing conservative majority would have a chance to overturn Roe v. Wade altogether.

Previous attempts fell short, with the court gradually chipping away the landmark 1973 decision but not dismantling it entirely. But now it seems that with a six to three majority, including three justices appointed under former president Trump, the years-long Republican effort to overturn Roe might come to fruition.

Background – what is it?

The US Supreme Court’s historic 1973 Roe v. Wade ruling struck down the Texas statute banning abortion. The ruling suggested that women’s rights to abortion are protected by the right of privacy in the Due Process Clause of the 14th Amendment to the Constitution. “A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the 14th Amendment,” the court ruled.

However, it also ruled that abortion right is not absolute and must be balanced against governments’ interests in protecting women’s health.

 A demonstrator holds a sign during a protest outside the US Supreme Court, after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year, in Washington, US, May 3, 20 (credit: REUTERS/EVELYN HOCKSTEIN) A demonstrator holds a sign during a protest outside the US Supreme Court, after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year, in Washington, US, May 3, 20 (credit: REUTERS/EVELYN HOCKSTEIN)

However, it also ruled that abortion right is not absolute and must be balanced against governments’ interests in protecting women’s health.

In a different ruling from 1992 – Planned Parenthood v. Casey – the court upheld Roe, collectively affirmed a woman’s right to an abortion, and prohibited state laws that unduly burdened that right.

Since then, conservative US states have tried a variety of strategies to impose conditions on abortions or abortion centers that were framed as pro-women’s health but were also intended to reduce access to abortion.

If the leaked version holds, what does it mean? What is the outcome?

“If Roe were overturned or fundamentally weakened, 22 states have laws or constitutional amendments already in place that would make them certain to attempt to ban abortion as quickly as possible,” said the Guttmacher Institute. Overall, the institute estimates 26 states are “certain or likely” to ban abortion without Roe.

Thirteen states, including Texas, Utah, Arkansas, and Oklahoma, have a so-called “trigger ban” in place, which could go into effect if it is overturned. Five additional states – Michigan, Wisconsin, Arizona, Alabama, and West Virginia – banned abortions prior to Roe. v. Wade.

The Guttmacher Institute notes that anti-abortion policymakers in several of these states have also indicated that they will introduce legislation modeled after the Texas six-week abortion ban.

Wyoming, for example, passed a law last month determining that “an abortion shall not be performed except when necessary to preserve the woman from a serious risk of death or of substantial and irreversible physical impairment of a major bodily function, not including any psychological or emotional conditions.”

What are the political effects of this decision?

Until Politico’s bombshell reporting, the two major issues for the upcoming election were inflation and the economy. As the S&P 500 lost 13% year-to-date, and with a risk of a recession looming, the Democrats’ prospects of keeping both the House and the Senate seemed relatively small.

And while this still may be the case, Democrats are hopeful that the recent developments could reshape the narrative of the midterm election, making it about abortion rights and not about the economy in a way that would allow them to rally voters who are disappointed with Biden’s performance. Senate Majority Leader Chuck Schumer has already announced he will bring a bill to codify Roe into law. And while the bill has no chance of receiving the 60 votes needed to avoid a filibuster, Schumer hopes to put members of the Senate on the record on that issue.

In addition, overturning Roe will essentially put the power in the hands of the individual states, making the 36 gubernatorial races the focal point of the midterms, which could lead to a greater turnout compared with initial estimates.

What do Jewish organizations say?

Many Jewish organizations strongly support abortion rights and have advocated for years to keep abortions legal. The National Council of Jewish Women announced that several groups, including CCAR, Na’amat USA, URJ, T’ruah and others, will hold a “Jewish Rally for Abortion Justice” on May 17 in Washington.

“Abortion access is a Jewish value, plain and simple,” the event’s website states. “For too long, the American narrative about religion and abortion has ignored Jewish voices — and it’s past time for that to end.”

Orthodox groups, on the other hand, offered a mixed reaction to the leaked draft. The Union of Orthodox Jewish Congregations of America (Orthodox Union) said they were unable “to either mourn or celebrate the news reports of the US Supreme Court’s likely overturning of Roe v. Wade. We cannot support absolute bans on abortion – at any time point in a pregnancy – that would not allow access to abortion in lifesaving situations. Similarly, we cannot support legislation that permits ‘abortion on demand’ – at any time point in a pregnancy – and does not confine abortion to situations in which medical (including mental health) professionals affirm that carrying the pregnancy to term poses real risk to the life of the mother.”

Rabbi Abba Cohen, vice president for government affairs at Agudath Israel of America, voiced a similar message. “At the present time, Agudath Israel of America has no comment or can finalize no specific advocacy action in response to the purported Dobbs decision,” he said. “It is merely a draft and may not at all represent the Court’s final ruling or its language. While Agudath Israel is closely monitoring this important – if irregular – development, the Jewish perspective on abortion is nuanced. Thus, we would have to review the precise nuances of the final decision itself – how, for example, it treats abortion rights when the ‘mother’s life or health is endangered,’ or when the ‘mother’s sincerely held religious beliefs allow or require’ her to seek an abortion. We would also have to carefully examine state statutes and prospective legislation on these matters. Only then can we responsibly determine the true impact of the Dobbs decision and future steps we might deem necessary.”